California Environmental Law & Policy Update - April 2019 #3

Focus

States say half of wetlands would lose protection under EPA’s WOTUS proposal

■Reuters - April 16

Fourteen states, including California, issued a joint statement on Monday, stating that the U.S. Environmental Protection Agency’s (EPA) proposal to replace and narrow an Obama-era water regulation—known as the Waters of the United States (WOTUS) rule—would end federal protection for half of wetlands and 15 percent of streams across the country. The attorneys general said the EPA violated the underlying federal Clean Water Act and ignored scientific evidence that shows the importance of wetlands, tributaries, and floodplains to downstream water quality. A group of 17 states, led by West Virginia, sent a separate letter to the EPA and the Army Corps of Engineers supporting the EPA’s plan, claiming it would provide relief to landowners and farmers. The EPA is expected to finalize the WOTUS rule later this year.

News

What to expect under California's "new" dredged or fill discharge procedures

■Allen Matkins - April 17

On April 2, 2019, the State Water Resources Control Board (State Water Board) adopted new rules entitled "Procedures for Discharges of Dredged or Fill Material to Waters of the State" (the Procedures). The Procedures establish a definition for "wetlands" that largely tracks the definition historically used by the U.S. Army Corps of Engineers (Army Corps). In addition, they establish a Regional Boards regulatory process for the submission, review and approval of applications for activities that could result in the discharge of dredged or fill material to "waters of the state." In total, however, the Procedures appear to do little more than formalize a Regional Boards permitting process that has been in effect to varying degrees since 2001, when the U.S. Supreme Court determined that the Army Corps does not have jurisdiction over "isolated waters." Perhaps the most important ramification of the State Water Board's action in adopting the Procedures is to effectively freeze in place the existing regulatory process for the fill of waters in California, even if the Trump administration is ultimately successful in its current efforts to scale back the reach and processing requirements of the Army Corps' Section 404 regulatory program.

Trump signs Colorado River drought contingency plan

■Associated Press - April 16

President Donald Trump on Tuesday signed a plan to cut back the use of water from the Colorado River, which serves 40 million people in the western United States. The drought contingency plan aims to keep two key reservoirs, Lakes Powell and Mead, from falling so low they cannot deliver water or produce hydropower. The agreement was negotiated among the seven states that draw water from the river, including California. Mexico also agreed to store water in Lake Mead on the Arizona-Nevada border if the legislation was approved by April 22. State water managers and federal officials have cited a prolonged drought, climate change, and increasing demand for the river’s flows as reasons to cut back on water usage. The drought plan calls for cutbacks through 2026.

Court orders EPA to reevaluate Obama-era power plant wastewater rule

■The Hill - April 15

The U.S. Court of Appeals for the 5th Circuit ruled last Friday that portions of the U.S. EPA's 2015 power plant wastewater rule regulating legacy wastewater and liquid from impoundments were “unlawful,” siding with various environmental groups. The court found that in setting the standards for the two types of wastewater, the EPA failed to use the best available technology economically available (BAT), an integral part of the Clean Water Act. The decision vacates the two standards and will require the EPA to draft new regulations for the specific types of wastewater.

The U.S. EPA on Wednesday issued a regulation it said would impose new restrictions on asbestos, a carcinogenic substance in insulation and fire-retardant construction materials commonly found in older buildings. The final rule goes somewhat further than the initial version the agency had proposed, but public health advocates said it is "toothless," and still falls short of the protections needed. Under the rule, the agency will require companies to obtain EPA approval to domestically manufacture or import specific types of products using asbestos. Previously-banned asbestos items like pipe insulation would remain banned, but the regulation fell short of the complete ban on asbestos sought by some consumer groups.

San Bernardino County and environmental groups sue over Fontana warehouse complex

■The Sun - April 16

San Bernardino County and several environmental groups filed separate lawsuits last Friday, accusing the city of Fontana of violating state environmental laws when it approved Florida-based UCT-CB Partners' West Valley Logistics Center, a 3.4 million-square-foot, seven-warehouse complex on 290 acres previously planned for up to 1,154 homes, an elementary school, and private and joint-use recreational facilities. According to the lawsuits, the project will add more than 6,000 daily vehicle trips through the area, including heavy trucks, leading to more air pollution, noise, and traffic and would harm critical habitat and destroy a wildlife corridor. The county is asking the court to direct Fontana to vacate its project approvals and undertake a more thorough environmental analysis.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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